Puckett & Faraj

Military members who get into trouble and are disciplined risk their military pensions, their benefits from the Veterans Administration (VA) or their quality of life in the civilian community. Military criminal defense attorneys analyze the case facts, argue for the most appropriate and just outcome for the member; be that acquittal or a conviction on lesser charges and/or reduced punishment.

Consequences of a Military Conviction

Those in trouble who are retirement eligible or those nearly eligible for retirement (within 2 years) risk losing their retirement at their current grade and most certainly some of their VA benefits. Each case is different, and the law, Presidential orders and federal regulations specify requirements for eligibility for separation, retirement and VA benefits. Quality of life in the civilian community focuses on having to register as a sex offender per federal and state law if you violate Article 120 of the UCMJ.

Military Officer Retirement

Honorable military service for 20 or more years entitles a military member to a pension and full VA benefits. Retirement can be in a grade lower, as per 10 USC 1370, “a military officer be retired in the highest grade in which he or she served on active duty satisfactorily… “ This may be determined by a recommendation by a Board of Inquiry or Show Cause Hearing after an officer has received non-judicial or judicial punishment.

Discharge Characterization

Characterization of a discharge as anything other than “honorable” results in ineligibility for some of the VA benefits. Petitions for exemptions can be made to the VA, outlining the specific facts of a military member and the VA has the authority to award benefits by exemption.

Acquittal and Military Service

It doesn’t seem fair that after being accused of crime and fully acquitted, you could still face being administratively separated from the military or retirement in a reduced rank. The military has full authority to separate anyone in his or her first term for cause. US Code states retirement is awarded based on satisfactory duty. The military defines satisfactory duty based on law and regulations derived from them.

Know Your Rights

Talk with your lawyer about the effects of each of the defense options in terms of lasting effect on your military career, your family and life after the military. Understand your rights and the consequences of the choices you make in your defense.

The spotlight is on Soldiers and former Soldiers accused of over a dozen slayings in the Colorado Springs, CO area near Fort Carson. These men are charged with violent crimes and a military study suggests a relationship between increasing levels of combat exposure and the risk of negative behavior in the community. Why didn’t the military justice system take care of these Soldiers before they committed crimes in the community?

Military Justice is a Commander’s Program

Military justice is a commander’s program; in other words the commanders exercise discretion on deciding if an offense should be charged and how offenders should be punished. When faced with an increasing escalation of behavior in a Soldier, a court-martial is the final step in a series of remedies available to ensure good order and discipline. Options include Wounded Warrior programs, behavioral counseling, medical treatments, alcohol and drug abuse counseling, and family support programs among others. The military legal processes are used when a crime as defined in the Uniform Code of Military Justice is allegedly committed.

Combat Related Stress Diagnosis

Programs, that support military members, are more limited or simply not available in a combat zone. The Commander’s must observe and identify those Soldiers with behavioral problems and get them the help then need. This may mean returning the Soldier to the home duty station for full diagnosis and support. Each individual’s case is different regarding the options for influencing possible negative behaviors.

Mental Issues in Court-Martial Defense

Military justice considers all the possible reasons for behavior and in some cases, gets a medical diagnosis of mental issues. A medical diagnosis can help in the defense of a military member and his or her sentencing if found guilty of a crime. If there is any indication of combat stress in a military member, those need to be shared with the military criminal defense attorney to determine the best options for defense.

A Sailor assigned at Camp Pendleton CA is charged with murder in the June 30^th fatal shooting of a fellow sailor, on duty at a guard station. The news coverage raises the possibility of a hate crime as a means to justify this alleged action. There currently is no so-called “hate crime” offense under the Uniform Code of Military Justice. The intent of the individual charged and the results of his or her actions is what the military investigator and attorneys seek to discover.

Military Investigation Services

Supporting or inhibiting this task is the investigation completed by the military services’ investigative arms. The Army Criminal Investigative Services (CID), Air Force Office of Special Investigations (AFOSI), Navy Criminal Investigative Services (NCIS), and Coast Guard Investigative Services (CGIS) all have the same focus – to discover the truth.

Military Seeking the Truth

Why is it that a defense or prosecution of a particular case is won or lost on the proof of truth based on the same investigation? Uniformed military attorneys serve as prosecution attorneys, defense attorneys, and sometimes judges during their careers in the military. Their ability to seek out the truth and represent the facts and intent of the defendant is one aspect of litigation. The seeking of truth is a principle that applies to all participants in a trial.

Military Rules of Behavior

Military lawyers must also analyze how the investigative service discovered evidence, how they interpret statements by witnesses and how they developed a sequence of events and timelines. The military criminal defense attorneys seek to clarify defendant’s actions (or inactions in some cases) within the principles of military rules of evidence, combat rules of engagement, operational tactics, techniques and procedures, and DoD, Service and Command conduct policies.

Military Legal Process

All of this information will be presented in a court of law, with appropriate procedures that protect the rights of the defendants and alleged victims. Anyone outside the process who publicly speculates about a rationale for action by any member facing military court-martial does an injustice to the rights conferred by the Constitution and our US laws.

The recent release of the new US battle rule to stop return fire on Afghan homes is intended to limit the collateral damage on the battlefield.  This adds to the rules of engagement (ROE) and further restricts the military in combat actions.  There are good military and political reasons for this addition to the rules of engagement but a possible consequence is the increased need for military justice.

Military ROE Training

ROE are trained and exercised by the military until every member of a unit is aware of and understands how to engage the enemy combatant.  This new ROE will require on the ground training in Iraq and Afghanistan and the military is very effective at getting the information out to each and every member in the field.

Military Member Responsibility

The individual application of the rules when faced with dire combat situations is a different matter.  As in all limitations on application of force, there might be an increase the incidents where military members, under duress, take action and are then held individually accountable for violations of the rules of engagement.

Violations of ROE

During Operation Iraqi Freedom and Operation Enduring Freedom, there have been several high profile media military justice cases involving military members killing civilians.  Examples include the Sadr City case where an Iraqi was deliberately shot in his home and another was dispatched in a “mercy killing.”  The Hamdania Case, where 8 Marines and 1 Sailor were accused of killing an Iraqi civilian instead of the suspected Al Qaeda fugitive they set out to kill.  The Haditha case, where 24 Iraqi civilians died after an IED explosion killed one Marine and seriously wounded two others.  The Haditha military case is still pending for 2 of the 8 originally accused.

Military Good Order and Discipline

Restrictive rules of engagement support good order and discipline on the battlefield along with ensuring safety in a dangerous environment.  The military lawyers, schooled in the law of war, provide battlefield assessments of each military action for commanders.  But they are not there, fighting hand-to-hand with the frontline military members who make decisions under duress.  The hope is that this new ROE can be applied to the battlefield to prevent unnecessary loss of civilian lives and actions of individual military members when called upon will not violate the new ROE.

Secretary Gates answered questions about Army deployment cycles in a town hall meeting at Fort Drum this week.  He had no specific answers regarding continuing and uneven shouldering of deployment lengths by brigades except to announce on July 20th an increase in Army personnel by 22,000.  The stress of continuous rotations into the battlefield can result in posttraumatic stress disorder (PTSD).

What is PTSD?

According to the National Center for Posttraumatic Stress Disorder, PTSD is an anxiety disorder that can occur after you have been through a traumatic event such as combat.  All people with PTSD have lived through a traumatic event that caused them to fear for their lives, see horrible things, and feel helpless.  They may try to avoid situations or people that trigger memories of the traumatic event. They may even avoid talking or thinking about the event.  Some people develop more severe systems that could affect their daily lives.

PTSD Impact on Military Careers

Family members can help monitor loved ones and counsel them when they begin to feel the anxiety of repeated deployments.  The military legal system gets involved when that military member chooses to not report for duty resulting in an unauthorized absence.  UA or AWOL is a serious military justice infraction.  Military members can return after being gone less than 30 days and most probably receive non-judicial punishment and can finish their military obligation or careers.   UA or AWOL for over 30 days most often results in a other than honorable discharge from the service.  This could make them ineligible for most Veterans Administration benefits.

Act Before the Military Justice System Does

If you are a family member of a military member and notice any of the symptoms of PSTD, encourage him or her to talk to the mental health professionals, chaplains and his or her immediate supervisor.  Get that person the help needed prior to having to deal with unauthorized absence or AWOL and the possible life-long results when the military justice system is involved.

Military members accused of a crime under the Uniform Code of Military Justice have the right to hire a civilian attorney in their defense.  The Government is obliged to provide a uniformed military defense attorney free of charge to each military member who has been given a charge sheet.   The outcome of a military court-martial depends on the facts of the case and the skill of your defense attorney.

Your Legal Rights

A uniformed military attorney is assigned to your case when you receive a charge sheet.  But what happens while the commander and the investigative service (NCIS, CID, CGIS, or the AFOSI) analyze the facts and determine whether a case merits legal proceedings or non-judicial punishment?  What are the long-term effects of military legal actions against you vice the non-judicial punishment?  Which one is better for your particular situation?

Military Charge Sheet

A military member can go to the legal office and talk to a defense counsel who will tell you that until you receive a charge sheet they can’t help you.  They will advise you to not make statements to the investigative service and they will tell you not to talk to anyone about your case.  They can advise you if your commander is offering you non-judicial punishment instead of a court-martial.  That decision depends entirely on the specifics of your case and your long-term life goals.  The problem is they don’t really represent you until after a decision is made to charge you.

The Best Defense Starts Early

The best defense is to think about all your actions before you do something.  If there is any concern that anything you do or say might violate the UCMJ, you should talk to your chain of command, review the operating and/or safety regulations in your unit, and/or talk to the legal office on the base.  If the command has started an investigation into you or your friends’ actions, the best defense is to not make any statements and seek an attorney.  Remember attorneys cannot counsel you unless they are hired or in the case of your uniform military attorney, you have been charged under the UCMJ.

What is the Post-9/11 GI Bill?

The Post-9/11 GI Bill is for persons with military service of at least 90 days of aggregate service on or after September 11, 2001, or those who were discharged with a service-connected disability after 30 days.  Your military service record must have been characterized as with an honorable discharge to be eligible for the Post-9/11 GI Bill.  You can receive up to 36 months of benefits for training at an Institute of Higher Learning, and have approximately 15 years following your release from active duty to use the benefits, if you are eligible.   If you served a continuous 36 months or more after 9/11 and you meet all the requirements for the Post-9/11 GI Bill, you are eligible for 100% of the funding available.

Benefits of the Post-9/11 GI Bill

Beginning on or after August 1, 2009, this program will pay eligible individuals tuition and fees, a monthly housing allowance, a stipend for books and supplies and a one-time rural benefit payment for eligible individuals.  The application form requires that individuals currently eligible for benefits under the Montgomery GI BILL-Active Duty (MGIB-AD), Montgomery GI Bill-Selected Reserve (MGIB-SR) or the Reserve Educational Assistance Program (REAP) make an irrevocable election from their existing program to the Post-9/11 GI Bill.  Additionally requirements apply, please review the Veterans Administration (VA) website.

Time your Benefits

The VA recently added additional information to their website.  “Normally, your months of entitlement under the Post-9/11 GI Bill will be equal to the number of months of entitlement you have remaining under the MGIB-AD. However, if you use all of your MGIB-AD benefits, then you may be entitled to a maximum of 12 additional months of benefits under the Post-9/11 GI Bill.”  This means you are on active duty and have used all of your MGIB-AD benefits, you could get an additional 12 months of education benefits.

Eligible for a Board for Correction of Military Records

Those separated military members without an honorable discharge should consider whether or not they are eligible for a Board for Correction of Military Records, Board for Correction of Naval Records, or a discharge upgrade.  While not every petition for a records correction or discharge upgrade are granted, the ability to apply for the Post-9/11 GI Bill rests on the characterization of your military discharge, your military service record, and amount of time served in the military.

Military Defense Attorneys

Civilian military attorneys can assess your military service record status and provide the legal services to request the upgrade or correction to your records.  Your military service is recognized by the VA as a contribution to our nation and the VA benefits are recognized as entitlement for those that served.   Review your DD Form 214 now to see if you are eligible for the Post-9/11 GI Bill.  The Law Firm of Puckett & Faraj, PC, defend the rights of all military members and work to support the fair treatment of our brave men and women.  If you or a member of your family could be eligible for VA benefits because of military service, please call our toll free number for a free consultation, 877-970-0005; or contact us via Email.  Your questions will be answered and all communication is protected by the attorney-client privilege.

A recent report by the Institute of Medicine Committee on Smoking Cessation in Military and Veteran Populations made recommendations to reduce tobacco initiation and encourage cessation in both active-duty and veteran populations.  They recommend Congress reinforce or change Presidential Executive Orders and Federal Law, one that directs no smoking in all federal buildings (which DoD responded to by setting up designated outside smoking areas) and a second that requires DOD to sell cigarettes at a discount rate free from local and state taxes.  They advocate that DOD and the Veterans Administration should treat tobacco the same way it does other health-related behaviors, such as alcohol abuse and poor physical fitness.

Eliminate Tobacco Use on Military Installations

The recommended strategy is to reduce the availability of tobacco and any sanctioned use of it.  This requires a strategic plan involving Congressional changes in law, removal of all support to smoking or chewing tobacco on military installations, and the requirement of commanders to education, train, rehabilitate and if all else fails, ultimately punish offenders.

Military Law

The military justice system uses a two-prong strategy to address alcohol abuse and poor physical fitness.   First an offender is identified either through observation or testing or as a result of an infraction of the law, on or off base such as in the case of a drunk driver.  The Commander then identifies a need for medical assessments and/or training or rehabilitation to educate and hopefully assist the military member in eliminating the problem.  Military members are given a fair amount of time to change behaviors.   Those who don’t or those whose behavior results in an infraction of the law may then be subject to the Uniform Code of Military Justice.

Administrative Discharge or Court-Martial

At best a military member found to have failed alcohol rehabilitation faces the likelihood of administrative separation.   At worst, the member could serve time in prison for alcohol-related criminal offenses.  The Institute of Medicine Committee report does not discuss the military justice response to a tobacco offender.  Unlike the dire circumstances that alcohol can produce, tobacco use mainly affects the individual and his or her personal military readiness for combat.

Military Career at Stake

DoD will most probably use the administrative separation choice for tobacco offenders who cannot break their habit within the proscribed timeline set by the medical community.  This failure to quit smoking or using chewing tobacco will leave military members with the possibility of an early discharge and possibly reduced Veteran Administration benefits.

Puckett & Hill, Afghanistan Dec 2008

Captain Roger T. Hill, left active duty on 30 June 2009.  The Army extended him for 90 days to run tests on his debilitating combat injuries suffered in nearly 8 years of service.  CPT Hill’s outstanding military service came to a halt when he allowed the rough handling of detainees in a Camp on the border of Afghanistan and Pakistan.  The Army charged him with a violation of the Geneva Convention.  Military Lawyer, Neal A Puckett, traveled to the front lines to defend CPT Hill in an Article 32 investigation.  Mr. Puckett inquired of the government, right before he left the combat zone, of the possibilities of non-judicial punishment instead of a general court-martial.  The government ignored his request until they reviewed the initial draft of the Article 32 and then called Mr. Puckett upon his return stateside to obtain an immediate agreement for military non-judicial punishment.

Resignation for the Good of the Service
Per the agreement, CPT Hill agreed to resign his active duty regular commission for the “Good of the Service,” as required by Army Regulations.  No one in his chain of command understood the Department of Veteran Affairs little known 38 Code of Federal Regulations 3.12, which states that when officers resign for the good of the service, no matter what discharge characterization they receive, they are not eligible for VA Disability Benefits.

Living with Afghan Spies
CPT Hill admits his errors in trying to secure the safety of his men, outnumbered 200 to 1, and living with Afghan spies on the post who were exposing their every movement to the Taliban.  He pleaded with Army headquarters to move the detainees where they could be secured and not returned to the streets before the 96-hour detention time limit had expired.   With the clock ticking down to the release hour, CPT Hill took some detainees into the yard and fired shots into the ground, simulating execution to fool those remaining inside in order to convince them to confess.  Those detainees inside started to talk and give the information that implicated them.  For this, safeguarding the lives of his men, he resigned his commission and now has lost his disability benefits from the VA.

Losing VA Disability
CPT Hill’s injuries are such that he will be disabled the rest of his life and suffer pain constantly.  He received those injuries in training and on the battlefield, and readily accepted responsibilities for his military actions in an attempt to save the lives of his men.  For that, he lost his commission and a promising career in the Army.  He should not lose the VA Disability compensation he deserves.

Fighting for VA Benefits
His military lawyer, Neal A. Puckett, continues the fight to restore CPT Hill’s VA Disability Benefits.  Recently Puckett & Faraj PC presented the SECARMY a novel, creative legal option for the Army to restore CPT Hill’s benefits.  However, the SECARMY declined to take the option.  The next step Puckett & Faraj, PC will take in correcting the system’s failure to provide CPT Hill his VA Benefits, is to apply for VA benefits under CPT Hill’s honorable discharge for service as a Cadet at West Point.  Another approach is an appeal to the VA for award of disability payments, as an exception to 38 CFR 3.12.

Military Defense Attorneys – Puckett & Faraj, PC
The Law Firm of Puckett & Faraj, PC, defend the rights of all military members and work to support the fair treatment of our brave men and women.  If you or a member of your family is being investigated by the military, please call our toll free number for a free consultation, 888-970-0005; or contact us via Email.  Your questions will be answered and all communication is protected by the attorney-client privilege.

The North County Times reported on June 16, 2009 that the Commandant of the Marine Corps has chosen to appoint a new convening authority in the Haditha case of Lt Col Jeffrey Chessani.   Chessani was charged with dereliction of duty after 24 Iraqi civilians were killed in Haditha in November 2005.  His case was dismissed in April, by a Marine Corps judge, because of unlawful command influence tainting the prosecutions case.

US Marine Corps Commandant

The Commandant of the Marine Corps, General Conway, chose to appoint a new commanding general officer to decide if the Marine Corps will send Lt Col Chessani back to a court-martial.  Options included completely dismissing the case against Chessani, preferring the same or different charges against him, or levying a lesser administrative discipline against the former battalion commander.

Chessani’s Command Responsibility

Lt Col Chessani was charged in December 2006, along with 7 other Marines alleged to be responsible for the deaths of 24 Iraq civilians in Haditha after an IED explosion killed a Marine and seriously wounded two others.  Their commanding officer, Lt Col Chessani, was responsible for oversight and command and control.  He was charged with dereliction of duty in failing to instigate a full investigation the day after the November 2005 event.

One Marine Waits for Court-Martial

The Squad Leader, SSgt Frank Wuterich, remains on active duty at Camp Pendleton waiting for his court-martial, 3 ½ years after the incident.  His court-martial is on hold, while the government appeals a motion, where the judge denied them the use of the CBS 60 Minute outtakes from Sgt Wuterich’s 2007 interview.   The Navy Court of Appeals heard oral arguments, on June 25, 2009.   No matter which way the Navy Court of Appeals rules, either CBS or the Government are expected to appeal the ruling to the U.S. Court of Appeals for the Armed Forces; continuing to delay justice for SSgt Wuterich.